Information Note on the Court’s case-law No. 132
July 2010
Agraw v. Switzerland - 3295/06
Judgment 29.7.2010 [Section I]
Article 8
Article 8-1
Respect for family life
Authorities’ refusal, for five years, to assign asylum-seekers to the same canton as their spouses, so they could live together: violation
[This summary also covers the judgment in the case of Mengesha Kimfe v. Switzerland, no. 24404/05, 29 July 2010]
Facts – Like the two men who were later to become their husbands, the applicants in both cases, who are Ethiopian nationals, entered Switzerland illegally and sought asylum there. The Federal Office for Refugees assigned the applicants to different cantons from the two men. After the asylum applications lodged by the four individuals concerned had all been rejected, they were ordered to be deported from Switzerland. They stayed in Switzerland, however, because the Ethiopian authorities prevented their return. After they had got married in 2003 and 2002 respectively, the applicants unsuccessfully sought to be assigned to the same canton as their husbands so that they could live together. In 2008 they were both eventually granted residence permits for the canton in question.
Law – Article 8
(a) Loss of victim status – The decisions authorising the applicants, on grounds of family reunion, to move to the canton to which their husbands had been assigned had not deprived them of their victim status regarding the restrictions which they had allegedly suffered as a result of the rejection of their requests to be assigned to a different canton; those restrictions had lasted approximately five years, which was a considerable length of time. In that connection the domestic authorities, including the Government, had never acknowledged, even implicitly, any violation of the applicants’ rights under the Convention. Furthermore, the applicants’ enforced separation from their husbands had not been compensated within the meaning of the Court’s case-law.
Conclusion: preliminary objection dismissed (unanimously).
(b) Applicability – For the purposes of Article 1 of the Convention, the applicants – whose extended stay in Switzerland had been due to the failure to enforce the order for their deportation to Ethiopia – had come within the “jurisdiction” of Switzerland, which, accordingly, had been obliged to assume its responsibility under the Convention. The applicants, who had not in any way complained of the decision ordering their deportation from Switzerland, had been prevented from cohabiting with their husbands for approximately four years. In the light of the principle that the ability to lead a life as a couple constituted, for married couples, one of the essential elements of the right to respect for family life, the applicants could, following their marriage, rely on the guarantees under Article 8.
Conclusion: Article 8 applicable.
(c) Merits – The authorities’ refusal to assign the applicants to the canton where their husbands had been living had amounted to an interference with their right to respect for their family life. The measure in question was prescribed by law and was designed to assign asylum seekers equitably between the cantons, which was a legitimate aim that could be regarded as falling within the concept of the economic well-being of the country. The applicants had been formally prevented from leading a life as a couple for approximately five years. Regarding the first case, the applicant had been able to maintain contact with her future husband and, since her marriage, to live with him. However, when she had gone to the police station one day she had been forcibly returned to her own canton, thus exposing her to a possible criminal penalty for illegal residence. Moreover, her decision not to stay in her own canton had had significant practical consequences in terms of her welfare benefits, health insurance and postal correspondence. Regarding the second case, even if the one-and-a-half-hour train journey that separated the applicant from her future husband had allowed them to have regular contact, as evidenced by their marriage and the birth of their child, the applicant had suffered a serious interference with her family life on account of the prolonged separation. The Court accepted that the Swiss authorities did, to an extent, have an interest in not changing the status of unsuccessful asylum seekers. However, the applicants and their husbands had been unable to return to their country of origin – and thus to build a family life outside Swiss territory – on account of the inability to enforce the deportation order against them because of the Ethiopian authorities’ opposition to the repatriation of their citizens. Assigning the applicants to their husbands’ canton earlier would not have had a significant effect on the number of aliens assigned to that canton and would not have adversely affected the equitable assignment of asylum seekers or have run counter to public policy. In any event, the advantages of that system for the respondent State had carried much less weight than the private interests of the applicants, even considering the administrative burden and the costs incurred in transferring them to a different canton. Having regard to the exceptional nature of the circumstances surrounding these cases and to the considerable number of years during which the applicants had been formally separated from their husbands, the measure in question had not been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 2,330 to the applicant in the first case in respect of pecuniary damage and EUR 846 to the applicant in the second case; EUR 5,000 to each of the applicants in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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